Citation Nr: 0839167
Decision Date: 11/14/08 Archive Date: 11/20/08
DOCKET NO. 06-34 400 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Louisville, Kentucky
THE ISSUE
Entitlement to service connection for a chronic respiratory
disorder, including bronchitis and sinusitis.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
Christopher Maynard, Counsel
INTRODUCTION
The veteran had active service from September 17, 1970 to May
8, 1971.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a May 2004 decision by the RO which
denied service connection for a chronic respiratory disorder,
including bronchitis and sinusitis. In January 2008, a
hearing was held at the RO before the undersigned member of
the Board.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
The veteran contends that he was hospitalized for an upper
respiratory infection in service in 1971, and that he has had
chronic respiratory problems ever since. The veteran
testified that he was treated by private doctors,
periodically since service, but that the physician who
initially treated him after service died years ago and his
medical records were no longer available.
The evidentiary record includes a letter from a private
physician (Dr. Settle) to the effect that he treated the
veteran from 1974 to 1992, and that the veteran had a
"tendency toward respiratory tract infections with
bronchitis, sinusitis and mild wheezing." Two letters from
another private physician (Dr. Giannina), dated in September
2003 and June 2004, were to the effect that the veteran
reported a history of respiratory problems since service.
The service medical records showed that the veteran was
hospitalized for an upper respiratory infection at Madigan
General Hospital for three days in February 1971, and was
released to duty without restriction. His service separation
examination in April 1971 was negative for any history or
pertinent abnormalities referable to any respiratory
problems. The first evidence of a respiratory disorder
subsequent to service was with the filing of this claim in
November 2003.
In order to establish service connection, there must be: (1)
medical evidence of a current disability; (2) medical, or in
certain circumstances, lay evidence of in-service incurrence
or aggravation of a disease or injury; and (3) medical
evidence of a nexus between the claimed in-service disease or
injury and the current disability. See Hickson v. West, 12
Vet. App. 247, 253 (1999).
In this case, the evidence of record shows treatment for a
respiratory disorder in service, medical evidence of a
current respiratory disorder, and evidence suggesting a
possible relationship between the veteran's current
respiratory problems and service. However, the veteran has
not been afforded a VA examination to determine the nature
and etiology of any current respiratory disorder. Therefore,
one must be provided to him. See Green v. Derwinski, 1 Vet.
App. 121, 124 (1991) [the duty to assist includes "the
conduct of a thorough and contemporaneous medical
examination, one which takes into account the records of
prior medical treatment, so that the evaluation of the
claimed disability will be a fully informed one"].
Part of VA's duty to assist under Veterans Claims Assistance
Act of 2000 (VCAA) is to provide the veteran with an
examination if, as in this case, there is competent evidence
of a current disability, and the evidence indicates that the
current disability may be related to an event in service.
38 C.F.R. § 3.159(c)(4) (2008). It should also be noted,
that the duty to assist is not a one-way street and requires
that the claimant cooperate fully with VA's reasonable
efforts to obtain relevant records from non-Federal sources,
such as private treatment records. 38 C.F.R. § 3.159(c)(1).
In this regard, the Board notes that in December 2003, the RO
requested that the veteran provide VA with authorization to
obtain all treatment records from the private physician who
claimed to have treated him for chronic respiratory problems
beginning in 1974. However, the veteran did not return the
authorization request forms. Similarly, at the personal
hearing in January 2008, the veteran requested and was given
an additional 60-days to obtain the private medical records
and submit them to the Board. To date, the veteran has not
provided VA with these records. Without the veteran's
cooperation, VA is not able to obtain the relevant treatment
records.
In light of the discussion above, and to ensure full
compliance with due process requirements, it is the decision
of the Board that further development is necessary prior to
appellate review. Accordingly, the claim is REMANDED to the
AMC for the following action:
1. The AMC should take appropriate steps
to contact the veteran and obtain the
names and addresses of all medical care
providers who treated him for any
respiratory problems since his discharge
from service. Of particular interest,
are any treatment records from Dr. Settle
from 1974 to 1992. Thereafter, the AMC
should attempt to obtain all identified
records and associate them with the
claims file. All attempts to procure
records should be documented in the file.
If any records identified by the veteran
cannot obtain, a notation to that effect
should be inserted in the file. The
veteran and his representative are to be
notified of any unsuccessful efforts in
this regard.
2. The AMC should contact the National
Personnel Records Center (NPRC) and
request all available clinical records
for hospitalization at Madigan General
Hospital from February 27, to March 1,
1971. If no such records can be found,
or if they have been destroyed, ask for
specific confirmation of that fact.
3. The veteran should be afforded a VA
pulmonary evaluation to determine the
nature and etiology of any identified
respiratory disorder. The claims folder
and a copy of this remand should be made
available to the examiner for review, and
a notation to the effect that this record
review took place should be included in
the report. All indicated tests and
studies should be accomplished. The
examiner should provide an opinion as to
whether it is at least as likely as not
that any identified current respiratory
disorder is etiologically related to or a
residual of the veteran's upper
respiratory infection in service in
February 1971, or otherwise related to
service. The examiner should describe
all findings in detail and provide a
complete rationale for all opinions
offered. If the examiner is unable to
render a determination as to the
etiology, she/he should so state and
indicate the reasons. The findings
should be typed or otherwise recorded in
a legible manner for review purposes.
4. The veteran must be given adequate
notice of the date and place of any
requested examination. The veteran is
hereby advised that failure to report for
a scheduled VA examination without good
cause shown may have an adverse effect on
his claim.
5. After the requested development has
been completed, the AMC should
readjudicate the claim based on all the
evidence of record and all governing
legal authority, including VCAA and
implementing regulations, and any
additional information obtained as a
result of this remand. If the benefits
sought on appeal remain denied the
veteran and his representative should be
furnished a Supplemental Statement of the
Case (SSOC) and given the opportunity to
respond thereto.
Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration, if in order. The Board intimates no opinion
as to the ultimate outcome of this case. The veteran need
take no action unless otherwise notified. The veteran has
the right to submit additional evidence and argument on the
matter or matters the Board has remanded. Kutscherousky v.
West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate
action must be handled in an expeditious manner. See 38
U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2008).